Worker denied damaging co-workers' tools but evidence pointed to guilt
An Ontario company had enough evidence to find just cause for dismissal of an employee for vandalism in the workplace, an arbitrator has ruled.
Tarek Kerkeni was a first-class maintenance technician for Invista, a nylon manufacturer in Kingston, Ont. He was first hired in January 2006 and progressed to first-class status, though he was known to be hostile towards suggestions from co-workers on how to do assigned tasks.
One incident in November 2011 involved two co-workers observing Kerkeni working in what they considered an unsafe way and contrary to Invista’s safe practice protocols. They reported it to management and Kerkeni was suspended. Kerkeni felt he had been working safely and the suspension was unwarranted. A grievance reduced the suspension to a written warning and Kerkeni felt vindicated. However, afterwards he was heard by others referring to the two co-workers as “rats.”
On Aug. 15, 2012, one of the co-workers found the shop refrigerator to be empty of water bottles, though there had been between 20 and 30 in it the day before. Kerkeni had worked the previous shift, so the co-worker asked him about it but Kerkeni mumbled something and left.
The next day, the two co-workers took a carton of paper towels and put it on Kerkeni’s toolbox with a teasing note, “Put this in your secret spot.”
On Friday, Aug. 17, the two co-workers in the maintenance department discovered someone had vandalized their equipment. One of them found his battery charger missing — it was found damaged in a bin a few days later — and his tool cabinet had several dents in it, seemingly from being struck with a heavy object. Also, a steel rod that was normally used to secure the drawers had been bent to jam the drawers, and the drawers of another cabinet in the shop with his name on them had been struck with something.
The other co-worker found his tool cabinet filled with water. He wasn’t sure what to think, but after learning of the other worker’s vandalized equipment, he understood he had been vandalized as well. Additionally, an add-on to his tool cabinet — which contained pictures of his family — had been struck and dented.
As the co-workers discussed the vandalized equipment, another employee overheard them and told them he had seen Kerkeni bending over one of their cabinets with his arm swinging sideways and accompanied by a banging noise. The employee had thought Kerkeni was trying to close the drawer, but after hearing about the damage, he realized Kerkeni had been hitting it. The co-workers reported it to Invista management.
Kerkeni denied damaging any equipment and said he had been working on a fishing line when observed in the shop, using a hammer on top of the cabinet to hammer the hook. He also explained that when he had been overheard calling his co-workers “rats,” he had been joking and the others had taken it as such. In addition, he said he had removed some of the water bottles from the fridge because he was managing the department’s supply, which was one of his tasks. He denied having any grudges against the two co-workers.
Invista management felt it had enough evidence that Kerkeni had in fact vandalized equipment and terminated his employment in September 2012.
The arbitrator found little reason to believe Kerkeni’s explanations, as they were at odds with the reports of every other employee involved. None of the employees had any reason not to tell the truth, and it wasn’t credible that he was working on a fishing line when observed by the co-worker — particularly since his arm was moving sideways, which was more likely to mean he was jamming and hitting the drawers, rather than hammering a hook in an up-and-down motion.
The arbitrator also found it was likely Kerkeni bore a grudge against the two co-workers after the safety warning and the teasing note they left him. All the evidence led to the conclusion Kerkeni was guilty of the vandalism.
